Re: first sale doctrine

>>> gsinger[_at_]dc.rr.com 10/10/02 10:37PM >>>
Don't get hung up on the word, "sale." The copyright owner relinquishes his right to vend once a particular copy is distributed or disposed of even though the distributee is obligated to "return" the copy or destroy it. Many film cases decided upon the issue of "salvage" and recovery of salvaged copies interpreted as a "sale" despite the absence of a technical "sale" for money or money's worth. (See U.S.A. vs. BUDGET FILMS, U.S.A. vs. RAY ATHERTON, U.S.A. vs. MARK THOMAS, and others so decided. What is required is that the vender had no knowledge that the particular copy had not been sold. The government's case turns on its ability to prove that no copy had ever been subjected to any form of such disposal or distribution. Singer. <<<<<

A clarification: "Publication" is defined as "the distribution of copies or phonorecords of a work to the public by sale or other transfer of ownership, or by rental lease or lending." That clearly includes things other than sale. But the first-sale doctrine, in Section 109(a), says that "the OWNER of a particular copy or phonorecord lawfully made under this title ... is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord." In order for the first sale doctrine to apply, you must be an owner of that particular copy. You don't have to have acquired it for money (a sale), but you do have to be the owner. If you are obligated to return the copy, that doesn't look like ownership to me.

Tyler T. Ochoa
Professor and Co-Director
Center for Intellectual Property Law
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA 92626
(714) 444-4141, ext. 243
(714) 444-1854 (fax)
tochoa[_at_]law.whittier.edu Received on Mon Oct 14 2002 - 20:13:27 GMT